Practice Relating to Rule 115. Disposal of the Dead
Section C. Cremation of bodies
Geneva Convention I
Article 17, second paragraph, of the 1949 Geneva Convention I provides:
Bodies shall not be cremated except for imperative reasons of hygiene or for motives based on the religion of the deceased. In case of cremation, the circumstances and reasons for cremation shall be stated in detail in the death certificate or on the authenticated list of the dead.
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, Article 17, second para.
Geneva Convention III
Article 120, fifth paragraph, of the 1949 Geneva Convention III provides:
Bodies may be cremated only for imperative reasons of hygiene, on account of the religion of the deceased or in accordance with his express wish to this effect. In case of cremation, the fact shall be stated and the reasons given in the death certificate of the deceased.
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 120, fifth para.
Geneva Convention IV
Article 130, second paragraph, of the 1949 Geneva Convention IV provides:
Bodies may be cremated only for imperative reasons of hygiene, on account of the religion of the deceased or in accordance with his expressed wish to this effect. In case of cremation, the fact shall be stated and the reasons given in the death certificate of the deceased.
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 130, second para.
No data.
Argentina
Argentina’s Law of War Manual (1969) provides:
Bodies shall not be cremated except for imperative reasons of hygiene or for motives based on the religion of the deceased. In case of cremation, the reasons must be stated in detail on the death certificate or on the authenticated list of the dead.
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 3.005.
Australia
Australia’s Defence Force Manual (1994) states: “The cremation of the dead shall be carried out individually in accordance with the religious rights and practices of the deceased.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 999.
The manual specifies: “Bodies shall only be cremated for imperative reasons of hygiene and health, or for the requirements of the deceased.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 9-100.
Australia
Australia’s LOAC Manual (2006) states:
9.104 The … cremation of the dead shall be carried out individually in accordance with the religious rites and practices of the deceased …
9.105 Bodies shall only be cremated for imperative reasons of hygiene and health, or for the requirements of the deceased.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 9.104–9.105.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Benin
Benin’s Military Manual (1995) provides: “Cremation shall only take place for imperative hygiene reasons and according to the deceased’s religion.”
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule II, p. 12.
Canada
Canada’s LOAC Manual (1999) provides: “Bodies shall not be cremated except for imperative reasons of hygiene or for religious motives.”
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 9-6, § 59.
Canada
Canada’s Code of Conduct (2001) provides: “Bodies must not be cremated except for imperative reasons of hygiene or because of the religion of the deceased. Reasons for cremation must be recorded.”
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 7, § 5.
Canada
Canada’s LOAC Manual (2001) states in its chapter on the treatment of the wounded, sick and shipwrecked: “Bodies shall not be cremated except for imperative reasons of hygiene or for religious motives.”
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 925.6.
Canada
Canada’s Prisoner of War Handling and Detainees Manual (2004) states with regard to the funeral arrangements for prisoners of war (PW): “PW may only be cremated for imperative reasons of hygiene, on account of the religion of the PW or in accordance with a written request by the PW or by the Prisoners’ Representative on the PW’s behalf.”
Canada, Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations, B-GJ-005-110/FP-020, National Defence Headquarters, 1 August 2004, § 3F17.5.b.
Canada
Canada’s Code of Conduct (2005) instructs: “Bodies must not be cremated except for imperative reasons of hygiene or because of the religion of the deceased. Reasons for cremation must be recorded.”
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 7, § 5.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 2 (Instruction for group and patrol leaders):
The dead … must then be … cremated … when the tactical situation permits and other circumstances (hygiene) permit. Cremations may be performed only for imperative reasons of hygiene and in accordance with the religion of the deceased.
Central African Republic, Le Droit de la Guerre, Fascicule No. 2: Formation pour l’obtention du certificat technique No. 2 (Chef de Groupe), du certificat Inter-Armé (CIA), du certificat d’aptitude de Chef de Patrouille (CACP), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter III, Section II, § 2.3.
Chad
Chad’s Instructor’s Manual (2006) states that “a Graves Registration Service must be set up to record information [including] … the preservation of ashes”.
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 91.
France
France’s LOAC Manual (2001) states: “Bodies shall not be cremated except for imperative reasons of hygiene or for motives based on the religion of the deceased.”
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 121.
Israel
Israel’s Manual on the Laws of War (1998) states:
Generally speaking, the enemy fallen are to be interred (in accordance with their religion’s customs insofar as possible), with cremation allowed only in cases where this is necessary hygienically or for religious reasons.
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 61.
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
As a rule, the enemy’s fallen should be buried as per their religious rites as far as possible, and the bodies may only be burned in cases where this is necessary for reasons of hygiene or for religious reasons.
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 39.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Kenya
Kenya’s LOAC Manual (1997) provides: “Cremation shall take place only for imperative reasons of hygiene or for motives based on the religion of the deceased.”
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 3, p. 11.
Netherlands
The Military Manual (1993) of the Netherlands states that “the cremation of a body shall be granted for imperative reasons of hygiene or for motives based on the religion” of the deceased.
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. VI-2.
Netherlands
The Military Manual (2005) of the Netherlands states: “Cremation of a corpse is permitted for pressing hygienic or religious reasons.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0609.
Peru
Peru’s IHL Manual (2004) states: “Bodies should only be cremated for imperative reasons of hygiene or for reasons connected with the religion of the deceased.”
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 86.b.
Peru
Peru’s IHL and Human Rights Manual (2010) states: “Bodies should only be cremated for imperative reasons of hygiene or for reasons connected to the religion of the deceased.”
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 77(b), p. 277.
Poland
Poland’s Procedures Governing the Interment of Soldiers Killed in Action (2009) states: “In specific circumstances, bodies may be cremated – for example if that method is in accordance with the religious beliefs of the deceased, or if it is necessary to maintain hygiene and prevent the spread of disease.”
Poland, Norma Obronna NO-02-A053:2004, Działania wojenne Procedury pochówku poległych i zmarłych, enacted by decision No. 134/MON related to the Approval and Enforcement of Regulatory Instruments in Respect of State Defence and Security, 21 April 2009, published in the Official Gazette of the Ministry of National Defence, No. 8, Item 99, April 2009, Section 2.1.
The Procedures also states: “Civilian members of the armed forces who had not participated in hostilities shall be buried in line with procedures established for the burial of the bodies of soldiers.”
Poland, Norma Obronna NO-02-A053:2004, Działania wojenne Procedury pochówku poległych i zmarłych, enacted by decision No. 134/MON related to the Approval and Enforcement of Regulatory Instruments in Respect of State Defence and Security, 21 April 2009, published in the Official Gazette of the Ministry of National Defence, No. 8, Item 99, April 2009, Section 2.4.2.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) provides: “Dead bodies shall not be cremated except for imperative reasons of hygiene or for motives based on the religion of the deceased.”
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 168.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
- Bodies shall not be cremated except for imperative reasons of hygiene or for motives based on the religion of the deceased. In case of cremation, the circumstances and reasons for cremation shall be stated in detail in the death certificate or on the authenticated list of the dead.
…
- These provisions shall likewise apply to the ashes, which shall be kept by the Graves Registration Service until proper disposal thereof in accordance with the wishes of the home country.
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 2, p. 107.
Spain
Spain’s LOAC Manual (1996) stipulates that cremation is permitted only if required on religious grounds or for reasons of hygiene in cases where there is a risk of disease.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, Article 5.2.d.(6).
Spain
Spain’s LOAC Manual (2007) states: “Bodies may only be cremated for imperative reasons of hygiene or for reasons relating to the religion of the deceased.”
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 5.2.d.(6).
Switzerland
Switzerland’s Basic Military Manual (1987) states: “Cremation is only permitted for imperative hygiene reasons or for religious motives.”
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 76, commentary.
Togo
Togo’s Military Manual (1996) provides: “Cremation shall only take place for imperative hygiene reasons and according to the deceased’s religion.”
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule II, p. 12.
Ukraine
Ukraine’s IHL Manual (2004) states: “Bodies shall not be cremated except for imperative reasons of hygiene or for motives based on the religion of the deceased.”
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 2.5.3.6.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states:
Bodies must not be cremated except for imperative reasons of hygiene or for motives based on the religion of the deceased. When cremation is carried out the circumstances and reasons for it must be stated in detail on the death certificate.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 384.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) provides: “Cremation is allowed only on religious grounds or for imperative reasons of hygiene.”
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 6, p. 22, § 5.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
Bodies must not be cremated except for imperative reasons of hygiene or for motives based on the religion of the deceased. When cremation is carried out, the circumstances and the reasons for it must be stated in the death certificate. The ashes must be respectfully treated and kept by the official graves registration service until properly disposed of according to the wishes of the home country.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 7.35.
United States of America
The US Field Manual (1956) provides:
Bodies shall not be cremated except for imperative reasons of hygiene or for motives based on the religion of the deceased. In case of cremation, the circumstances and reasons for cremation shall be stated in detail in the death certificate or on the authenticated list of the dead.
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 218.
United States of America
The US Air Force Pamphlet (1976) provides: “Cremation is permitted only for imperative reasons of hygiene or for motives based on the deceased’s religion.”
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 12-2(a).
United States of America
The US Operational Law Handbook (1993) provides: “Parties may cremate the dead only for hygienic or religious reasons.”
United States, Operational Law Handbook, JA 422, Center for Law and Military Operations and International Law Division, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia 22903-1781, 1993, p. Q-185.
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime.
Bangladesh, International Crimes (Tribunal) Act, 1973, Section 3(2)(e).
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
Denmark, Military Criminal Code, 2005, § 36(2).
Ireland
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1949 Geneva Conventions, including violations of Article 17 of the Geneva Convention I, Article 120 of the Geneva Convention III and Article 130 of the Geneva Convention IV, is a punishable offence.
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … is liable to imprisonment.
Norway, Military Penal Code, 1902, as amended in 1981, § 108(a).
Russian Federation
In 2007, in the Burial case, the Russian Federation’s Constitutional Court was called upon to rule on the constitutionality of two laws related to the interment of suspected terrorists whose deaths resulted from the interception of their terrorist acts. The Court held that the restrictive measures introduced by these laws were in conformity with the Constitution. The Court stated:
3.1 … [T]he interest in fighting terrorism, in preventing terrorism in general and specific terms and in providing redress for the effects of terrorist acts, coupled with the risk of mass disorder, clashes between different ethnic groups and aggression by the next of kin of those involved in terrorist activity against the population at large and law-enforcement officials, and lastly the threat to human life and limb, may, in a given historical context, justify the establishment of a particular legal regime, such as that provided for by section 14(1) of the Federal Act [on Interment and Burial of 12 January 1996, as amended], governing the burial of persons who escape prosecution in connection with terrorist activity on account of their death following the interception of a terrorist act. …
…
3.2. Action to minimise the informational and psychological impact of the terrorist act on the population, including the weakening of its propaganda effect, is one of the means necessary to protect public security and the morals, health, rights and legal interests of citizens. It therefore pursues exactly those aims for which the Constitution of the Russian Federation and international legal instruments permit restrictions on the relevant rights and freedoms.
The burial of those who have taken part in a terrorist act, in close proximity to the graves of the victims of their acts, and the observance of rites of burial and remembrance with the paying of respects, as a symbolic act of worship, serve as a means of propaganda for terrorist ideas and also cause offence to relatives of the victims of the acts in question, creating the preconditions for increasing inter-ethnic and religious tension.
In the conditions which have arisen in the Russian Federation as a result of the commission of a series of terrorist acts which produced numerous human victims, resulted in widespread negative social reaction and had a major impact on the collective consciousness, the return of the body to the relatives … may create a threat to social order and peace and to the rights and legal interests of other persons and their security, including incitement to hatred and incitement to engage in acts of vandalism, violence, mass disorder and clashes which may produce further victims. Meanwhile, the burial places of participants in terrorist acts may become a shrine for certain extremist individuals and be used by them as a means of propaganda for the ideology of terrorism and involvement in terrorist activity.
In such circumstances, the federal legislature may introduce special arrangements governing the burial of individuals whose death occurred as a result of the interception of a terrorist act in which they were taking part.
Russian Federation, Constitutional Court, Burial case, 28 June 2007, §§ 3.1–3.2.
The Court also stated:
The constitutional and legal meaning of the existing norms presupposes the possibility of bringing court proceedings to challenge a decision to discontinue, on account of the deaths of the suspects, a criminal case against or prosecution of participants in a terrorist act. Accordingly, they also presuppose an obligation on the court’s part to examine the substance of the complaint, that is, to verify [that] the decision and the conclusions therein [are lawful and well founded] as regards the participation of the persons concerned in a terrorist act, and to establish the absence of grounds for rehabilitating [the suspects] and discontinuing the criminal case. They thus entail an examination of the lawfulness of the application of the aforementioned restrictive measures. Until the entry into force of the court judgment the deceased’s remains cannot be buried; the relevant State bodies and officials must take all necessary measures to ensure that the bodies are disposed of in accordance with custom and tradition, in particular through the burial of the remains in the ground ... or by [cremation].
Russian Federation, Constitutional Court, Burial case, 28 June 2007, § 87.
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UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992)
In 1994, in its final report on grave breaches of the Geneva Conventions and other violations of IHL committed in the former Yugoslavia, the UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992) noted, with respect to its investigation into mass graves:
A mass gravesite is a potential repository of evidence of mass killing of civilians and POWs [prisoners of war] …
The manner and method by which a mass grave is created may itself be a breach of the Geneva Conventions, as well as a violation of the customary regulations of armed conflict … Bodies should not be cremated except for hygiene reasons or for the religious reasons of the deceased.
UN Commission of Experts Established pursuant to Security Council Resolution 780, 1992, Final report, Annex Summaries and Conclusions, UN Doc. S/1994/674/Add.2 (Vol. I), 31 May 1995, § 503(a) and (b).
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